Sivasubramania Mudaliar and Others vs A.R.A.R.S.M. Somasundaram Chettiar

We agree with the learned District Judge in holding that under the agreement between Arunachellam Chettiar and the 1st defendant the plaintiff

is entitled to recover the costs of the litigation against Mahadeva Aiyar. We are unable to accept Mr. Ramesam''s argument that the plaintiff had no

right to sue the defendants for the interest due on the amount of Rs. 2,500 in the hands of Messrs. Parry and Co., which was transferred to

Arunachellam before recovering the principal amount from Messrs. Parry and Co., or Mahadeva Aiyar. The claim for interest due for the 3 years

prior to the institution of the suit is clearly not barred by limitation. The second appeal must therefore be dismissed with costs. The claim in the

plaintiff''s memorandum of objections to interest prior to the period for which it was allowed by the lower Court cannot be sustained as it is barred

by limitation. But with respect to the costs of the litigation against'' Mahadeva Aiyar, we think that the learned judge is wrong in holding that the

right to recover all costs incurred more than three years before the suit is barred by limitation. It could not have been the intention of the parties to

Exhibit A that the Chettiar should be entitled to recover each item of costs as soon as it was incurred. We are of opinion that limitation began to

run only from the termination of the litigation when the plaintiff would be able to ascertain the total amount of the costs. The plaintiff no doubt is

entitled to recover the costs from the defendant, although Mahadeva Aiyar also became liable to pay the costs decreed against him by the courts.

The defendants however must be held to be entitled to a transfer of the plaintiff''s claim under the decree in S.A. No. 998 of 1903 to costs against

Mahadeva Aiyar. The decree to be passed in the plaintiff''s favor must be conditional on his assigning to the defendants the decree he has obtained

for costs against Mahadeva Aiyar within three months from this date. The plaintiff will have a decree on this account for Rs. 300 in addition to the

amount awarded by the District Court. He will be entitled to interest on the amount decreed to him for costs from the 27th November 1905. Both

parties will have proportionate costs throughout in the memo of objections.